Mrs Amy Olivia Reynolds v LA Realty Pty Ltd (Barry Plant Frankston)
[2023] FWC 278
•1 FEBRUARY 2023
| [2023] FWC 278 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Amy Olivia Reynolds
v
LA Realty Pty Ltd (Barry Plant Frankston)
(U2022/11064)
| COMMISSIONER WILSON | MELBOURNE, 1 FEBRUARY 2023 |
Application for relief from unfair dismissal - application dismissed pursuant to section 399A of the Act.
On 18 November 2022, Ms Amy Olivia Reynolds (The Applicant) made an application for unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). Ms Reynolds’ employment had been terminated by LA Realty Pty Ltd (Barry Plant Frankston) (The Respondent) on 17 November 2022.
The matter was listed for conciliation on 8 December 2022, however, could not take place as Ms Reynolds did not attend. Consequently, on 14 December 2022, the parties were informed that the matter was being referred to conference/hearing.
Directions were issued on 19 December 2022, which listed the matter for a hearing, via Microsoft Teams, on 30 January 2023. These Directions also outlined the timeline per which parties were to file and serve their submission.
On 3 January 2022 parties were notified that the matter would be listed for a mention on 9 January 2023. Ms Reynolds did not attend the mention, a telephone call was made to Ms Reynolds by my associate, where Ms Reynolds advised that she was having technical difficulties joining the Microsoft Teams meeting, she was asked to restart her browser and call back if she had further issues. My associate made a further seven calls to Ms Reynolds, to which there was no answer from Ms Reynolds. I determined it was appropriate to proceed with the mention without Ms Reynolds. During the mention the Respondent withdrew their jurisdictional objection.
Following the mention, the Directions to the parties were reset. These new directions, of 9 January 2022, outlined that the matter would be heard on the merits at 10 AM on 8 March 2023. Ms Reynolds was ultimately directed to file an outline of submissions and any evidence she wished to rely on by 30 January 2023. Ms Reynolds was also directed to provide an explanation for her non-attendance at the mention by 5 PM 9 January 2023.
By 10 January 2023, Ms Reynolds had not provided an explanation for her non-attendance, she was granted until 5 PM 13 January 2023 to inform the Commission whether she intended to continue her application, and if not to advice as such or file a Notice of Discontinuance. Ms Reynolds was cautioned that failure to comply with these directions will mean the Respondent would be at liberty to seek an order under s.399A to dismiss her substantive application for failure to comply with a direction of the commission. A voicemail message was also left on Ms Reynolds’ number requesting she attend to this issue urgently.
The Respondent made an application to have the application dismissed under s.399A of the Act due to Ms Reynolds’ failure to comply with the Directions of the Commission, this was received by the Commission and served on Ms Reynolds on 17 January 2023.
On 18 January 2023, Ms Reynolds’ was asked to provide an explanation for her non-compliance by 5 PM 25 January 2023. To date, Ms Reynold’s has not provided any explanation nor made any contact with Chambers.
Section 399A of the Act provides as follows:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
....
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application”.
I am satisfied that the Respondent’s objection filed on 17 January 2023 is an application to have the matter dismissed for Mr Anthony’s failure to comply with a direction of the Commission.
As Ms Reynolds did not file any material in opposition to the application to dismiss, nor provide satisfactory reasoning for failing to file materials I will determine the application based on the materials provided.
Based on the materials provided I find this failure to be unreasonable given the clear contact made with the Applicant by the Commission.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to the many attempts by the Commission to progress her application. She has repeatedly failed to provide an explanation without reasonable excuse. In these circumstances, I will exercise my discretion and dismiss Ms Reynolds’ application. An order giving effect to this decision will be issued in conjunction with this decision.
COMMISSIONER
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